Dual Federalism from 1918 to 1936
Trout, Andrew Patrick
When the Constitution specifies that laws of the United States made pursuant to it are to he considered the supreme law of the land, "anything in the constitution or laws of any state to the contrary notwithstanding," are we to recognize here a grant of power unqualified by the terms of the later adopted Tenth Amendment? The latter provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Herein is the question presented by the theory of "dual federalism," For the theory assumes that there lies in the Tenth Amendment, or in the powers reserved to the states, some inherent limitation upon the above-mentioned "supremacy" clause of the original Constitution. The term "dual federalism" is probably not the moat proper, for no one would deny that the federal system is "dual"; yet as used here it will denote a limitation upon national power employed by the Court in delineating the boundaries of the two sovereignties—federal and state. The term will indicate a dual, or double, safeguard against the use of national authority in areas thought to be the exclusive preserve of the states—instead of the single safeguard provided by the representative nature of the national government together with the fact that it is a government of delegated powers. One’s opinion of this doctrine will depend upon his view of the Tenth Amendment— whether it must be considered a vital principle of constitutional construction, a real limitation, or whether, as the Court remarked in 1941, "the amendment states but a truism that all is retained which has not been surrendered."
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